Yearly Archives: 2010

The False Promise of Retributive Proportionality

Jul 12, 2010 Aya Gruber

As an undergraduate philosophy student, Kantian metaphysics rocked my world.  Kant’s account of human cognition as a priori and synthetic and his forging of complex epistemological theory from that metaphysical observation were like poetry to me.  Further, Kant’s ethical theory seemed like the only one based on more than just an arbitrary first principles or a posteriori human instincts about right and wrong.  Rather, Kant based his moral imperative on noncontradiction, which itself comes from the necessary conditions of cognition.  What could be more reasonable than a moral program based on metaphysical observations about the human condition?  Accordingly, I embraced retributivism with an almost zealous fervor.  It was so clean―as logical as the symmetric property of equality:  Punishment should be given to those who deserve it.  Thus, those who deserve it should be punished.

As I moved from undergrad to law school to the public defender’s office to academia, I continued to be a Kantian.  I continued to believe that the very notion of justice was embodied in the principle that we punish those who deserve it as much as they deserve.  I attributed the mass injustice of the American penal system to the retributive failings of criminal justice actors.  In short, moved by political concerns, legislators, prosecutors, and judges supported severe sentences, despite the fact that most thoughtful people could recognize that such sentences were undeserved.  If only these state actors could be better retributivists, the problems of disproportionate sentencing and skyrocketing prison population would be solved.

What I failed to understand then seems so obvious to me now.  The rise of the American carceral state indisputably coincided with the rise of retributive philosophical rhetoric.  Retributivism was the problem, not the solution.  Had I then had the benefit of reading Alice Ristroph’s How (not) to Think Like a Punisher, 61 Fla. L. Rev. 727 (2009), I would have had come to this realization much sooner.  In this short, easy-to-read essay, Ristroph takes on retributivism’s most compelling claim―that it provides the sole ground for limiting punishment on the basis of proportionality.  Situating her discussion of retributivism in the context of the newly revised Model Penal Code’s apparent endorsement of a distinctly retributivist concept of proportionality in sentencing, Ristroph concludes that the “new Code is at its best when it acknowledges the legal and political complexities of sentencing, and at its worst when it invokes the rhetoric of desert.” (P. 728).  Ristroph’s support for the socially contextual, empirically based Model Penal Code sentencing provisions over the theory-based retributive provisions raises two questions.  First, what’s wrong with retributivism?  Second, if not retributivism, then upon what basis can we demand that sentences be proportional?

In answering the first query, Ristroph travels well-trodden philosophical ground, pointing out retributivism’s utter indeterminacy.  The most salient critique of retributivism is that it tells us to punish those who deserve it but fails to give any indication of who deserves it and how much they deserve.  There are nonetheless attempts to give content to the loose philosophical notion, as the essay notes, such as the currently popular “empirical retributivism,” which defines retributive justice with reference to shared social intuitions of what is deserved and how bad certain crimes and criminals are.  But the social intuitionism school is particularly disturbing in light of studies that reveal social intuitions of justice to be largely racialized.  In this sense, “judgments of ‘desert’ may serve as an opportunity for racial bias to enter the criminal justice system.” (P. 746).  Thus, the desert provisions of the Model Penal Code in effect undermine other portions of the Code that expressly call on judges to examine the racial impacts of criminal sentencing.

In addition to providing safe harbor for racial bias, desert can also serve to shelter the most severe punishment regimes from claims of disutility.  Ristroph characterizes the evidence-based sentencing provisions of the Model Penal Code as generated by the drafters’ “hope that the facts will speak for themselves . . . that once people see how much sentences cost, and how little they apparently deter, the only rational response will be to reduce the length of prison sentences and look for other alternatives.” (P. 748).  This hope, however, is undoubtedly undermined by retributive sentiments that the guilty―and most convicts facing sentencing are guilty―ought to be given the punishment they deserve, no matter how much it costs, how undeterrable crime is, or how much this “deserved” punishment happens to disproportionately impact certain populations.  Consequently, “[t]he danger of desert is that it preserves the possibility that some will say the costs are worth it, the inequities deserved.” (P. 748).

Yet if we simply give up on retributivism because it can be used as an argument to keep sentences high, we also give up on the potential to rely on retributivism to lower sentences.  Ristroph points out, however, that if we understand the one-way ratchet nature of current retributive rhetoric, the promise of retributive proportionality is plainly false.  That retributivism has failed as a limiter, is evidenced by the fact that “the people who enacted and defended California’s [three strikes] law understood it as a way to guarantee that repeat offenders would get what they deserved.” (P. 742).

One might respond that although not currently effective, retributivism offers the only true promise of proportionate sentences.  After all, Justice Scalia described proportionality as “inherently a concept tied to the penological goal of retribution.”  Ewing v. California, 538 U.S. 11, 1 (2003) (Scalia, J., concurring).  It turns out, according to Ristroph, that Justice Scalia is wrong.  Non-retributive principles can be more than adequate grounds for proportional punishment.  Referencing her article, Proportionality as a Principle of Limited Government, 55 Duke L.J. 263, 263 (2005), Ristroph posits that proportional punishments are a necessary feature of a government of limited penal authority.  In addition, one can imagine other principles, external to the question of punishment’s basis, such as racial equality, communitarianism, distributive justice, and civilized modernity (e.g., James Whitman, A Plea Against Retributivism, 7 Buff. Crim. L. Rev. 85 (2003)) as counseling against harsh sentences.  In the end, Ristroph urges sentencers to liberate themselves from the binds of penal theory and think beyond whether punishment is deserved.  Thoughtful sentencing requires navigating the turbid waters of empirical efficacy, social context, and government authority to arrive at the just punishment.

An Intriguing Thought Experiment on Culpability

Jun 10, 2010 Margareth Etienne

In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability.  They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks.  As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts.  Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written.  It is hard to put down, at least figuratively.  Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.

Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.)  This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability.  Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results.  Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others.  They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters.  In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability.  As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation.  In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin.

While the authors fail, to my mind, to persuade that punishment and liability should be entirely retributive and culpability-based, their book is ultimately a success in that it forces the reader to confront deeply held beliefs about fault.  Crime and Culpability provides a conceptually and pedagogically useful thought experiment about the virtues and the deficits of holding defendants responsible only for things in their control.

The controversial implication of the choice theory of liability is the elimination of negligence liability.  The authors explain that negligence—or the failure to advert to a risk that was unperceived but should have been perceived—is not culpable because we cannot be “morally culpable for taking risks of which we are unaware.” (P. 71.) They explain that an injunction “to notice, remember, and be fully informed about anything that bears on risks to others is an injunction no human being can comply with” and therefore one that reflects no moral defect.  (P.71.)  And they are right but the result is not one that most of us can live with.  The book pushes us to ask ourselves why.

Another compelling thought experiment raised by Crime and Culpability is their suggestion that we ought to collapse the distinction between offenses and defenses.  I sympathize with the author’s intuition that the oft-made distinction between offenses and defenses is formalistic.  The distinction exists perhaps for reasons of procedural fairness rather than theoretical integrity and they are right to point that out.  But how would we operationalize such a system?  Essentially the authors contend that defenses and their offenses are of one cloth as indicators of criminal culpability.  Recall that their “choice” theory of criminal liability is about the risks “the actor believes himself to be unleashing beyond his control”, id. at 86, and not about the consequences of his conduct.   Interesting questions arise when choice is placed at the center of personal culpability.  Are we fully responsible for our choices, judgments and misjudgments?  Or for the quality of our deliberations? Or for our mistakes in making normative judgments?  Is the gang member who was raised by other gang members culpable for her choices?  Is the batterer who believes that wife beating is culturally appropriate responsible for his beliefs?  The book demonstrates, perhaps unwittingly, how offenses can become subjective when we focus on choice and when we eliminate resulting harm from consideration in determining culpability.

In this limited space, I can’t begin to do justice to the breadth and depth of issues addressed in Crime and Culpability or to the many philosophical quandaries it uncovers.  I enjoyed reading it not because I agree with it but because it forced me to think critically about all the reasons I don’t and, at times, some of the reasons I am wrong to disagree.  I recommend it wholeheartedly.

The Return of Banishment: Punishment and Policing

May 24, 2010 Elizabeth Joh3 comments

Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time.  Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century.  Banishment went the way of the rack and screw, so the thinking goes.  Instead, the predominant form of modern punishment is a form of confinement: incarceration.  If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.

One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention.  This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law.

Banishment, according to the authors, isn’t dead.  In fact, it’s reemerging as a significant form of official punishment.  The reason it hasn’t been recognized widely is that it doesn’t come packaged as “punishment,” or even “banishment,” for that matter.  The forms of banishment that Beckett and Herbert discuss are categorized as civil or administrative remedies, and so are unlikely to be discussed in the same breath as traditional criminal law offenses.  Whatever their label, these strategies are best understood as banishment because they constitute formal spatial exclusion.

Beckett and Herbert look at the functions and consequences of modern day banishment, and rely upon empirical data they have collected from Seattle, Washington, considered to be at the “cutting edge of this trend” (P.5).  Beckett and Herbert focus on three forms of banishment: parks exclusion orders, which permit the police to ban persons from public parks for minor infractions like being present after hours; trespass admonishments, which permit the police to act as agents of private property owners in restricting access to places normally open to the public; and off-limits orders that prohibit persons from certain geographic areas of a city as a condition of community release and supervision.

Based on interview data with those who have been subject to banishment, Beckett and Herbert contend that the lived experiences of these “alternatives” to criminal punishment are non-criminal in name alone.  Using the terminology from Gresham Sykes’ seminal 1958 study of prisoners in The Society of Captives, Beckett and Herbert demonstrate that the pains of punishment that are associated with incarceration have close parallels in the experiences of those banished.  Being legally barred from a place one calls “home,” even if an unconventional home, punishes the banished person in ways ranging from the symbolic (psychic pain) to the emotional (loss of contact with friends and family) and the mundane (difficulty in obtaining access to health services, social workers, and food).

This reemergence of banishment should matter to criminal law scholars for a number of reasons.  First, it turns out that these civil alternatives are too often a backdoor to the criminal justice system.  While each of the forms of banishment studied in Seattle is classified as civil, violations of park exclusion orders, trespass admonishments, and off-limits orders are criminal offenses.  Note too that because the initial orders are civil, an individual subject to, say, a parks exclusion order receives nothing like the procedural protections that a conventional criminal defendant does.  (In Seattle, the police may exclude a person from a public park without providing any evidence of wrongdoing.)  The effects of the orders can be considerable; large swaths of the city can be designated as forbidden to the banished person.  In addition, to the extent that Seattle is representative of the trend, these officially noncriminal tools are resulting in increasingly frequent use of the criminal justice system.

Second, the modern forms of banishment discussed by Beckett and Herbert are driven by the same motivations that spurred enthusiasm for “quality of life policing” in the 1990s.  Many police departments credited a focus on the enforcement of minor crimes like public urination and open container violations for the drop in crime in major American cities.  But later studies cast doubt on this thesis.  Was quality of life policing really the key factor in crime decreases?  And who defines “disorder,” anyway?  This second question is underscored by the authors’ interview data.  Banishment tools may seem to city officials and the police like a clear cut method to rid a city of unwanted behaviors, but from the viewpoint of those on the receiving end of these orders, banishment can be a separation from things, places, and persons that individuals hold most dear.

Third, the very focus of this fine article calls out to teachers of criminal procedure everywhere.  Remember in scholarship and in teaching that criminal law enforcement is but one aspect of policing.  Police do everything from chasing robbers to getting cats out of trees and enforcing civil and administrative codes.  This basic insight has important consequences for the perennial questions in policing, like the tool of wide discretion the police enjoy to take care of the problem of disorder in cities.  Civil banishment, as the authors suggest, may be too much tool and not enough problem.

The Beautiful Struggle: A Prosecutor’s Redemption Story

May 3, 2010 Mary Fan2 comments

Paul Butler’s new book Let’s Get Free is essential reading for those who care about American criminal justice, prosecutorial power, and doing justice from inside the system.  It is also a beautiful rarity for a book of big scholarly ideas: page-turning reading.  The writing hums with the rhythm, flow, and narrative of hip hop at its best—one of the inspirations for an intriguing chapter and the book’s subtitle: A Hip-Hop Theory of Justice.  The intimate portrait of the prosecutor and the criminal justice system that Paul presents is an important contribution to the literature penetrating the opacity of prosecutorial power, practices and pressures.¹

It is a tribute to how successfully Paul liberates his scholarly ideas from the stilted prose that dooms legal scholarship to limited readership that one of my law students recommended this hot new book to me.  He was moved and inspired by the book enough to spread the word and seek to discuss it.  This is the power of great ideas, set in beautiful prose, made compelling through narrative.  And narrative is the thread that binds this book of many big ideas.

A Recovering Prosecutor

We begin with a redemption story: Paul is about to impress his mom watching him in trial by letting the prostitute he is prosecuting have it on cross-examination.   This is just practice for Paul the star prosecutor rising fast through the ranks to join the elite Department of Justice Public Integrity section.  Paul’s story is inspirational.  Raised by a single mom in a poor black neighborhood on Chicago’s South Side, Paul went on to study at Yale and Harvard, and then to a prestigious clerkship and law firm.

The story then takes a twist.  The star prosecutor becomes the prosecuted.  I will not give away the story by revealing for what crime, except to say that it is a ridiculous accusation and would be comedic if it had not been endured by a real person.  Paul never told his mom. Poignantly he writes that he would rather have her memory be of her son in trial, not on trial.

Paul thus opens by powerfully and frankly framing his positionality—something anthropologists are wonderful at doing and legal scholars should be more aware about. Arguments are more compelling when situated in context with credibility, vantage, and experience fronted.  Paul has credibility in abundance from his complex place as an outsider who made it inside and is now telling us about the system like it is and what we can do to transform it.

Criminal Justice, Indicted

The system is not pretty—and perversely makes us less safe by locking too many people up, Paul writes.  With the highest rate of incarceration in the world, we have reached a tipping point where more convictions and incarceration mean less safety.  Going to jail is starting to seem like a rite of passage for young men in some low-income communities.  When conviction and incarceration start looking normal, the criminal law loses its stigma—draining criminal law of its deterrent power.  Moreover, mass incarceration is also counterproductive because it disrupts families and social organizations, which are much more important in constraining crime than any ham-fisted police power or prison. Paul also riffs on how the drug war fuels over-incarceration and how the heavy use of “snitches” — (a word I hate because it is too often misused to silence and intimidate brave people who come forward out of concern for their communities) — stains the integrity of criminal justice and harms communities we aim to help.  Paul distinguishes between “snitches”—typically criminals who offer information for a bounty, usually cash or leniency—and people who altruistically step forward to be witnesses.

What of the beautiful dreamers, who hope to change the system from the inside?  Dream on, but do not be deluded, Paul tells us.  You may go in as he did, thinking he would be the Undercover Brother on the inside, but instead end up collaborating in injustice, Paul writes.  He recollects how the system changed him rather than him changing the system.  He played a symbolic and legitimizing function in a jurisdiction where the arraignment court line-up of defendants recalls the Ntozake Shange poem that begins “The suspect is always black and in his early twenties.” Butler, the elegantly suited, Ivy-educated, clean-shaven 6’3” black man reassured black jurors in every inflection that everything’s cool, go ahead and convict this scumbag defendant (who contrasts so jarringly with him).

What about the discretion to do justice?  Paul tells us discretion is mainly a myth at the line prosecutor’s level.  The head of the office may have vast power to set the prosecutorial policy, but the line-level prosecutor must implement.  In short, Paul tells us good people should not be prosecutors.

Though I love this book, I do not always agree with it.  This is one such point of disagreement.  Perhaps it is because I worked under a brave exemplar of a leader, a U.S. Attorney who truly believed in doing justice — even if that meant braving political fire to go after the powerful and not just the poor and easy targets.  Then again, she was one of the U.S. Attorneys controversially cut by the Bush Administration.  So to paraphrase Paul’s memorable turn of phrase, “the shit’s complex.”  But I still have hope that people with courage and integrity can do great things from the inside.

The Beautiful Struggle

My favorite works do not just critique—they offer a vision of transformation.  Paul offers a multidimensional vision and many concrete ideas.  You may not agree with some or even all of what he argues and proposes.  But the genius of the visionary is to open your mind to the universe of possibilities and an array of ideas, some of which may take wing even if others do not.

The nation’s leading expert on jury nullification, Paul tells ordinary citizens what they can do to check a system out of control, raging on the steroid of the War on Drugs.  He explains principled nullification when it comes to unjust laws.  Do not let the violent criminal off, Paul tells potential jurors, but do spare the casualties of the War on Drugs, swept up for low-level drug offenses.

He also offers numerous other ideas—including a seven-point plan—that I will not outline here because you should read the book.  I will just mention one other fascinating proposal.  Paul talks about how technology may help liberate us from our addiction to prisons.  For example, ankle bracelets are preferable to pushing nonviolent offenders into the brutal boiler of prison, where they are initiated into race-based gangs for survival.

What I love about this book is that it is deeply real and does not shy away from the gritty and the gray.  Paul does not ignore the deep conflicts that the criminal justice system must navigate and the need to punish the bullies who hurt others. He has locked up thugs who he thinks should not see the light of day.  He powerfully argues, however, that our system should not perversely do violence to communities by incarcerating vast portions of their people for non-violent crimes.  The book is at once radical and practical, from a visionary with real-world credibility.  We vitally need such practical radicals and visionaries with real-world credibility in the hard task of defining and better realizing criminal justice.

Government Dragnets

Apr 15, 2010 Christopher Slobogin

All commentators agree that the Fourth Amendment’s second, “Warrant Clause”—providing that search and arrest warrants be based on probable cause and describe with particularity the place to be searched and person or items to be seized—was meant to do away with general warrants. The general warrant is still very much with us today, however. Without any individualized suspicion, homes and businesses are subject to health and safety inspections, school children must undergo drug testing, motorists are stopped at roadblocks and checkpoints, important documents maintained by banks, credit card companies and other entities are mined for data, pedestrians in our major cities are monitored by camera systems, and everyone’s personal effects are uniformly scanned and searched at borders, airports, and various other major travel hubs.

The Supreme Court has pretty much allowed all of this to go on without any constitutional restriction.  In the case of drug interdiction, roadblocks, and drug testing of pregnant mothers, it has declared that individualized suspicion is needed.  But otherwise the Court has either held that the Fourth Amendment does not apply because the government action is not a search (as with data mining) or concluded, in effect, that any government search and seizure program that avoids irrationality is permissible.  Many commentators have deplored this state of affairs and proposed a number of alternatives, usually either requiring some sort of individualized suspicion (which would probably put an end to all general searches and seizures) or adopting a variant of strict scrutiny analysis, which would require courts to determine whether the program is narrowly tailored to meet a compelling state need (and would involve some very difficult, and arguably improper, judicial calculations about programmatic costs and benefits).

An alternative approach to the problem of group searches and seizures is proposed by Richard Worf in The Case for Rational Basis Review of General Suspicionless Searches and Seizures.  In this article Worf applies John Hart Ely’s political-process theory to government dragnets. Political-process theory attempts to mediate the interbranch tension caused by challenges to legislation under indeterminate constitutional provisions. It does so by telling courts that such challenges should succeed only if the legislative pronouncement is the result of a significant defect in the democratic process. According to Worf, “The theory respects our society’s presumption of democratic decision making and simply holds that judicial review should always be affirmatively justified by some representation-reinforcing rationale.”

Worf ties this idea to Fourth Amendment jurisprudence by asserting that, when search and seizure of a group rather than of an individual is involved, representation of the relevant interests is often possible. If so, he argues, courts owe the results of democratic decisionmaking deference. As Worf notes, courts have long trusted legislative balancing of government and individual interests in other constitutional arenas involving groups (consider, for instance, equal protection, due process and takings cases). Thus, he contends, we should be equally willing to trust legislatures to balance those interests in Fourth Amendment cases involving general searches and seizure. Worf concludes that, “[w]here only groups are affected, very important, disputed questions can safely be left to the political process.” He adds that the text of the Fourth Amendment says as much, for it is framed in terms of reasonableness, an inquiry into “social welfare maximization” that judges are no better equipped to address than legislatures, at least when groups rather than individuals are involved.  In short, Worf argues, general searches and seizures authorized by legislatures should usually merely have to pass a rationality test, in which case they are normally valid as a constitutional matter.

Worf also recognizes, however, that many searches and seizures cannot be said to result from even the generous concept of democratic functioning that underlies rational-basis review. He identifies three principal process defects: (1) an absence of authorizing legislation, (2) legislation that delegates too much power to the executive branch, and (3) legislation that prejudices a discrete and insular minority. In these situations, Worf states, the Court should apply strict scrutiny rather than rational-basis review.

The first defect most obviously occurs in the run-of-the-mill search and seizure based on individualized suspicion. These types of actions are not authorized by legislation, but rather involve the exercise of police-officer discretion. A good example, Worf notes, is Delaware v. Prouse, in which the Supreme Court pointed out that the officer “was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks.” Another variant of this defect arises when some type of upper-level authorization exists, but it comes from an unelected body; here Worf points to Ferguson v. City of Charleston, where hospital officials and local police created a policy for testing pregnant women for drug abuse.

A second process defect occurs when authorizing legislation is enacted, but it fails to impose any meaningful constraints on officer discretion, thus in effect replicating the absence-of-legislation defect. Worf suggests that this defect was present in the statute upheld in Burger v. New York, which permitted officers to inspect junkyards for stolen vehicle parts whenever they chose.

The third type of process flaw that Worf identifies, well-known to all constitutional-law buffs, occurs when the law generated by democratic decisionmaking discriminates against a group that is precluded from significant participation in the political process. Prisoners and aliens fit in this category, as would racial groups in some situations. Worf also suggests that a statute that authorized checkpoints in high-crime neighborhoods, although facially neutral, would be suspect if those neighborhoods are generally composed of minorities. Although disparate-impact analysis has faded from other areas of constitutional law, Worf acknowledges it could have a place in Fourth Amendment jurisprudence given the history of racial profiling in policing.

I found this article to be thought-provoking and quite useful in dealing with an extremely knotty problem.  I rely on it heavily (with significant tweaks, of course) in several upcoming pieces, including one entitled Government Dragnets.  I highly recommend Worf’s article.